Delhi District Court
State vs Rajesh Kumar on 18 March, 2025
IN THE COURT OF DEVANSHI JANMEJA
JUDICIAL MAGISTRATE FIRST CLASS-4 (SOUTH-EAST)
SAKET COURTS, DELHI
1. Unique I.D. No. : 9/2016
2. Title of the case: : State Vs. Rajesh Kumar
FIR No. 402/2014, PS Govind Puri
3. Date of institution : 11.07.2014
4. Date of reserving Judgment : 05.02.2025
5. Date of pronouncement : 18.03.2025
JUDGMENT :
(a) The date of commission 13.04.2014
(b) The name of complainant Furdi Nand Kujur, S/o Sh. Alvis
Kujur, R/o House No. 192/12
Chhuriya Mohalla Bengali
Colony, Tughlakabad Village,
New Delhi
(c) The name & address of accused Rajesh Kumar, S/o Ramdas, R/o
Manoj Yadav ka Makan, Villge
Wazirabad, Gurgaon
Permanent Address Village
Parsouli, PS Bakner, District
Etahwa
(d) The offence complained of U/s 363 IPC
(e) The plea of the accused Not guilty
(f) The final order Convicted
(g) The date of such order 18.03.2025
BRIEF FACTS AND REASONS FOR DECISION
FIR No.402/2014 State Vs. Rajesh Kumar
1. As per prosecution, on 13.04.2014 at about 12:30PM, accused Rajesh Kumar has kidnapped by taking/enticing the minor girl namely Anamika aged about 6 years from outside her house i.e. gali no.12, Chhuriya Mohalla, Tughlakabad Village, New Delhi within the jurisdiction of PS Govind Puri, out of keeping of the lawful guardianship without the consent of guardians and thereby committed an offence under Section 363 of Indian Penal Code (hereinafter referred to as IPC). After completion of the investigation, a charge sheet was prepared and filed in the Court.
2. On the basis of the aforesaid charge sheet and annexed documents, cognizance was taken and the accused Rajesh Kumar was summoned to face trial. On appearance of the accused, provisions of Section 207 of the Criminal Procedure Code (hereinafter referred to as "the Code") were complied with and after hearing arguments, charge qua the offence punishable under Section 363 of IPC was framed against the abovenamed accused to which he pleaded "Not Guilty" and claimed trial instead and accordingly, the case was fixed for prosecution evidence.
3. During the course of the trial, prosecution examined 8 witnesses to substantiate the accusations leveled against the accused.
4. In his deposition PW-1 Fardi Nand Kujur deposed that on 13.04.2014 at about 12:30noon, his daughter Anamika went out of the house to throw the garbage. After some time, somebody informed him that one person, later on whose name was revealed as Rajesh, took his daughter somewhere on bicycle. He immediately came out from the house and made a noise. Thereafter, passersby apprehended the accused Rajesh along with his daughter Anamika. He asked his daughter and she replied that uncle took him on bicycle to get her a chocolate. He had suspicion on the accused FIR No.402/2014 State Vs. Rajesh Kumar that he took his daughter on bicycle with ulterior motive. He took someone mobile and called at 100 number. Thereafter, police official came at the spot and he handed over the accused Rajesh to the police official. He correctly identified the accused.
During cross examination, the witness states that at the time of incident, he used to work in the field of delivery of medicines. On the day of incident, he was present at his home and that he sent his daughter for throwing the garbage. Within 5- 10 minutes of departure of his daughter, one of his neighbour told him that accused was taking his daughter somewhere. When he came to know, he went to search his daughter in the village. He found his daughter outside his house alone. Public persons had apprehended accused Rajesh who was also sitting near his house. He did not know Rajesh prior to the incident. His nephew was his neighbour and used to work in the same factory as his but on the different floor. He further deposed that he did not make call at 100 number and that some public person had 100 number. Within 10 minutes of the incident, police reached at the spot. When police took accused Rajesh, only he and Rajesh was present at the spot. He deposed that did not see accused Rajesh taking his daughter and that Monu and Murthu might have beaten accused Rajesh but not in front of him.
5. PW-2 Smt. Anjali deposed that on 13.04.2014, When she returned at her house in afternoon, she came to know that one person Rajesh had taken her daughter on bicycle to get her chocolate/toffee. Accused Rajesh was apprehended by the public persons at the spot. She asked her daughter and came to know that no wrong act or misbehave has been committed with her daughter. Police official recorded the statement of her daughter. IO inquired her and recorded her statement.
During cross examination, she deposed that on 13.04.2014, she came back FIR No.402/2014 State Vs. Rajesh Kumar at home at about 6:00PM after doing work as domestic help. Police did not record her statement. She do not know what happened at the police station at the time of inquiry. Police told her that her case has been made and sent her to Safdarjung Hospital.
6. PW-3 Baby Anamika i.e. the child victim who had been allegedly taken by the accused, deposed that on the day of the incident, she was sent by her mother to throw the garbage around noon time. When she was returning back, one uncle met her and told her that he will give her toffees to eat and asked her to come alongwith him. He made her sit on the bicycle at the back side. Thereafter, one Monu bhaiya saw them and he asked Murthu bhaiya that see the girl is being taken on the cycle by a man. Murthu bhaiya came there. Her father also came there and gave beatings to the uncle. She do not know what happened thereafter. She correctly identified the accused . During her cross examination by Ld. APP for the State, she proved her statement under Section 164 CrPC Ex. PW 3/1. During the cross examination of the witness, she denied all the suggestions given to her.
7. PW-04 is W ASI Tersa Terky. She deposed that on 13.04.2014, she was posted as Duty Officer at PS Govindpuri. On that day, her duty hours were from 8 am to 4 pm. On that day, Ct. Vikram Singh came to police station alongwith original rukka, which was prepared by SI Hukum Vir Singh and handed over her for registration of FIR. She made endorsement on rukka Ex. PW-4/A and registered FIR Ex. PW-4/B (OSR). She proved certificate u/s 65 B of Indian Evidence Act as PW-4/C.
8. PW-05 is ASI Jai Pal. He deposed that on 13.04.2014, he was posted as Head FIR No.402/2014 State Vs. Rajesh Kumar Constable at PS Govindpuri On that day, he was on emergency duty and his duty hours were from 8 am to 8 pm. On receipt of DD No. 20 B regarding kidnapping of one girl child at Chhuriya Mohalla, Gali No. 12, Tughlakabad, New Delhi. Thereafter, he went to the spot i.e. Chhuriya Mohalla, Gali No. 12, Tughiakabad, New Delhi where many people were gathered. Complainant Fardinand told him that his daughter X aged about 6 year was kidnapped by accused Rajesh who was taking her on his cycle. Public persons stopped him and beat him. Thereafter, he made a call to Duty Officer and asked him to send senior officials. Thereafter, SI Hukum Vir Atri came to the spot. He apprised him all the facts to SI Hukum Vir Atri. IO/SI Hukum Vir Atri recorded statement of Fardinand and prepared rukka. IO made call to beat Ct. Vikram to come to the spot. Ct. Vikram came to the spot and handed over the rukka to him for registration of FIR. Thereafter, Ct. Vikram went to police station for registration of FIR and came back to the spot alongwith copy of FIR, original rukka and woman ASI. Victim was handed over to woman ASI for medical examination of her. Woman ASI alongwith mother of victim took the victim to the AIIMS Hospital. Thereafter, IO arrested the accused and conducted his personal search vide arrest memo and personal search memo Ex. PW-5/A and Ex. PW-5/B. IO recorded disclosure statement of accused Ex. PW-5/C. IO seized cycle of accused vide seizure memo Ex. PW-5/D. IO also prepared site plan on the spot at the instance of complainant.
9. PW-06 is Sh. Rajbir Singh, Medical Record Technician, AIIMS Hospital. He was a summoned witness regarding MLC No. 4418/2014 of patient X dated 13.04.2014. He has been working as Medical Record Technician in AIIMS Hospital since 2014. He proved MLC prepared by Dr. Jitender as Ex. PW-6/A. FIR No.402/2014 State Vs. Rajesh Kumar
10. PW-7 is Inspector H.V Attri. He deposed that on 13.04.2014, he was posted as Sl at PS Govindpuri. On that day at about 01:30 pm, DD no. 20-B was marked to HC Jai Pal regarding the kidnapping of minor girl. HC Jai Pal went to the place of incident from where he called at PS and asked to send some senior officer at the place of incident. The same was recorded in DD no. 12A. Thereafter, DD no. 12A was marked to him and he went to place of incident. When he reached at the spot, he met HC Jai Pal, Rajesh, Fardinand and Baby Anamika. After some interrogation, he came to know that Rajesh was taking away baby Anamika, thereafter, he recorded the statement of father of baby Anamika namely Fardinand as baby Anamika was under fear and she was not in the state to depose anything. The statement of Fardinand is already Ex.PW1/A. Thereafter, he prepared the rukka on the same which is Ex.PW7/A. Thereafter, he called Ct. Vikram, at the spot and handed over the rukka to him and sent him to PS for registration of FIR and he also instructed him to bring with him one lady police officer. At about 04:30 pm, Ct. Vikram alongwith W/ASI Tersa Tirkey came at the spot and he handed over to him the original copy of tehrir and copy of FIR and the further investigation was marked to me. Thereafter, he arrested accused Rajesh Kumar and conducted his personal search vide memos already Ex.PW5/A and Ex. PW5/B. Thereafter, he seized the bicycle of the accused vide seizure memo already Ex.PW5/D. Thereafter, he recorded the disclosure statement of the accused Ex.PW5/C. Thereafter, he prepared the site plan at the instance of complainant which is Ex.PW7/B. Thereafter, he sent accused with Ct. Vikram and baby Anamika with W/ASL Tersa Tirkey alongwith Anamika's mother namely Anjali to AIIMS hospital for medical examination. Thereafter, he alongwith HC Jai Pal came back to PS and deposited the case property in malkhana.
FIR No.402/2014 State Vs. Rajesh Kumar Thereafter, he called one counselor from one NGO namely Prayatan for the Counseling of the baby Anamika. The Counseling was done at the house of baby Anamika in his presence with her mother and W/ASI Tersa Tirkey by counselor namely Garima. He received the report from Garima regarding the same, which is marked as Mark A. Thereafter, he handed over the custody of baby Anamika to her mother and he came back to PS with W/ASI Tersa Tirkey. In the meantime, Ct. Vikram came back to PS alongwith accused after medical examination. Thereafter, he kept the accused behind the bars. On next day, accused was produced before the Hon'ble Court and the Court sent him to JC. He further deposed that on 16.04.2014, he alongwith W/ASI Tersa Tirkey again went to the house of baby Anamika and he recorded the statement of baby Anamika u/s 161 CrPC. On the same day. He alongwith baby Anamika, her mother and W/ASI Tersa Tirkey appeared before the Hon'ble Court to got recorded the statement of baby Anamika u/s 164 CrPC. On 17.05.2014, he recorded the statement of one independent witness namely Monu of the incident. During investigation, he recorded the statement of all the witnesses u/s 161 CrPC. After completing the investigation of this case, he prepared the chargesheet and filed it before the Hon'ble Court. During cross examination, he deposed that he received the information regarding the incident from DO. He reached at the place of incident at about 03:00 pm. When he inquired about the incident from the place of incident, at that time, no independent witness was sent there who had seen the incident. He asked public persons to join the investigation but everybody left by giving some valid reason. At that time, baby Anamika was under fear. Hence, her statement was not recorded at that time. He recorded the statement of the mother of the victim later on i.e on 16.04.2014. He denied all the suggestions. He had also written DD No. 20B dated 13.04.2014 and DD No. 12A d FIR No.402/2014 State Vs. Rajesh Kumar 13.04.2014, which are Ex. PW-4/D and Ex. PW-4/E respectively.
11. PW-8 is Ct. Vikram Yadav. He deposed that on 13.04.2014, he was posted as Ct. at PS Govindpuri. On that day, he received a call at about 03:30 PM from HC Jaipat, after receiving the call, he went to Gall no.12, Churriya Mohalla, TKD Village, New Delhi. After reaching there, IO handed over to him copy of tehrir and sent him to PS for registration of FIR. After registration of FIR, he alongwith W/ASI Teresa Tirki, went back to the place of incident and handed over the original tehrir and copy of FIR to IO. Thereafter, with the directions of IO, he alongwith accused Rajesh went to hospital for the medical examination of the accused. After medical examination of accused, he alongwith accused Rajesh came back to PS and after giving the food to the accused, he was kept behind bars. Thereafter, IO recorded his statement u/s 161 CrPC.
During cross examination he deposed that he received the call at about 3:30 PM. He went alone to the place of incident, HC Jai Pal was already present at the place of incident. When he reached at the place of incident, complainant, HC Jai Pal and other public persons were present there. He denied all the suggestion put to him.
12. Thereafter, the prosecution evidence was closed as no other witness was examined by the prosecution and the statement of the accused was recorded under Section 313 of the Cr.PC. The accused did not lead any evidence in his defence, therefore, DE was closed and matter was listed for final arguments.
13. During the course of final arguments, it has been argued by Ld. APP for the State that the prosecution has proved its case beyond reasonable doubts and the accused be FIR No.402/2014 State Vs. Rajesh Kumar convicted. On the other hand, Ld. Counsel for the accused has argued that the accused has been falsely implicated in the present case and the prosecution has miserably failed to prove its case beyond reasonable doubts.
14. I have carefully heard the submissions of the Ld. APP for the State and the Ld. Counsel for the accused and have perused the entire evidence on record.
15. Accused is facing allegations for commission of offence U/s 363 IPC.
Section 363 IPC reads:- Whoever kidnaps any person from or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
16. Section 361 IPC defines kidnapping from lawful guardianship. It reads:
Whoever takes or entices any minor under [sixteen] years of age if a male, or under [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
17.In Thakorlal D. Vedgama Vs. State of Gujarat, (1973) 2 SCC 413, while dealing with the question of kidnapping of minor girl, it was observed by the Hon'ble Supreme Court in paragraph 10 as under:-
"...... The expression used in Section 361 IPC is "whoever takes or entices any minor". The word "takes"
FIR No.402/2014 State Vs. Rajesh Kumar does not necessarily connote taking by force and'-it is not confined only to use of force, actual or constructive. 'This word merely means, "to cause to go", "to escorts"
or "to get into possession'. No doubt it does mean physical taking, but not necessarily by use of force or fraud. The word "entice" seems to involve the idea of inducement or allurement, by giving rise to hope or desire in the other. This can take many forms, difficult to visualise and describe exhaustively; some of them may be quite subtle, depending for their success on the mental state of the person at the time when the inducement is intended to, operate. This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time, in achieving its ultimate purposes of successful inducement. The two words "takes" and "entices', as 'used in Section 361 IPC are, in our opinion, intended to be read together so that each takes to some extent its colour, and content from the other. The statutory language suggests that if the minor leaves her parental home, completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in Section 361 IPC. But if the, 'guilty party has laid a foundation by inducement, allurement or threat, etc. and if this can be considered to have influenced the minor or weighed: with her in leaving her guardian's custody or keeping and going to the guilty party, then prima facie it would be, difficult for him to plead innocence on the ground that the minor had voluntarily come to him. If he had at an earlier stage solicited or induced her in any manner to leave her father's protection, by conveying or indicating an encouraging suggestion that he would give her shelter, then the mere circumstance that his act was not the immediate cause of her leaving her parental home or guardian's custody would constitute no valid defence and would not absolve him. The question truly falls for FIR No.402/2014 State Vs. Rajesh Kumar determination on the facts and circumstances of each case..........." . Thus, there is no evidence of any inducement.
In State of Haryana Vs. Raja Ram (1973) 1 SCC 544, while dealing with the case of kidnapping of a minor girl, aged about fourteen years, the Hon'ble Supreme Court explained the object of Section 361 IPC in paragraph 8 as under:
"...... The object of this section seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words "takes or entices any minor out of the keeping of the lawful guardian of such minor" in Section 361, are significant. The use of the word "Keeping" in the context connotes the idea of charge, protection, maintenance and control: further the guardian's charge and control appears to be compatible with the independent of action and movement in the minor, the guardian's protection and control of the minor being available, whenever necessity arises. On plain reading of this section the consent of the minor who is taking or enticed is wholly immaterial; it is only the guardian's consent which takes the case out of its purview. Nor is it necessary that the taking of enticing must be shown to have been by means of force or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section."
18. In order to prove the offence under Section 363 IPC, the prosecution has to prove
(i) that the person kidnapped was a minor and if a girl was under the age of 18 years;
FIR No.402/2014 State Vs. Rajesh Kumar
(ii) such child must have been in the keeping of her lawful guardian;
(iii) the accused must have taken or enticed the minor from the custody of the lawful guardian.
Firstly, the age of victim has been duly verified by the IO during the investigation. The age of victim at the time of incident has been duly verified as 6 years by the IO during the investigation. The same fact was again verified by the Court when the child victim appeared before the Court on 14.03.2017 to depose. Further, the fact of her age has also not been disputed by the defence by cross examination or otherwise. Therefore, the fact that the child victim was minor under the age of 18 years has been duly established during the course of the trial.
Secondly, it has been established and undisputed fact that child victim Anamika was living with her parents on 13.04.2014 and had gone out of the house to throw garbage. Meaning she was within the keeping and custody of her parents.
Thirdly, PW-1 Fardi Nand Kujur i.e. father of the child victim Ms. X stated that on the day of incident at 12:30noon his daughter Anamika went out of the house to throw the garbage. After some time, somebody informed him that one accused person namely Rajesh had taken his daughter some where on a bicycle. Further, Ms. X i.e. PW-3 after her preliminary examination had duly been held to be competent to depose and understand the meaning of taking oath. During her examination in chief she deposed that when she was coming back after throwing garbage around noon time one uncle met her and promised to give her toffees to eat and asked her to come along with him. He made her sit on his bicycle on the back side. Then one Monu bhaiya saw them and asked Murthu bhaiya. Then one Murthu Bhaiya came there. Her father also came there and gave beatings to that uncle. She correctly identified the accused as that uncle who took her on a bicycle. She remained consistent with the statement she made u/s 164 CrPC which was exhibited as Ex PW3/1. Further FIR No.402/2014 State Vs. Rajesh Kumar immediately after the incident, during her counselling with child councellor Ms. Garima, she recollected the same facts as above which could be read from the Counsellor's report which was marked as Mark A. The accused rather, has been unable to disprove the corroboratory statement made by both the victim herself and her father. Thus, the prosecution has amply proved that the child victim Anamika was taken from the custody of her lawful guardian i.e. her father.
19. Though the testimony of Monu and Murthu have not been recorded who apparently saved the child victim from the clutches of the accused, the prosecution has established the case beyond reasonable doubt since the evidence tendered by all the prosecution witnesses is of sterling quality sufficient to inspire the confidence of the Court. The accused has been correctly identified by the child victim PW- Anamika as well as her father PW-Fardi Nand Kujur and both the main witnesses have deposed in corroboration with each other versions. Minor discrepancies such as which parent told the child victim Anamika to go out to throw the garbage can be overlooked since nearly three years have passed when their evidence was recorded after the date of the incident and a child could've have perceivably forgotten which parent sent the child for throwing the garbage. Further lapses by the IO during the course of investigation should not go the benefit of the accused when other direct as well as corroborative evidence is on record to prove guilt of accused. Where the evidence of witnesses, albeit interested witnesses, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case
20. In these circumstances, this court is of the considered opinion that the prosecution has been able to prove its case against the accused beyond reasonable FIR No.402/2014 State Vs. Rajesh Kumar doubt. Accordingly, the accused Rajesh Kumar is convicted in this case for the offences punishable U/s 363 IPC.
Digitally signed by DEVANSHI DEVANSHI JANMEJA
JANMEJA Date: 2025.03.19
09:41:07 +0530
ANNOUNCED IN THE OPEN (DEVANSHI JANMEJA)
COURT ON 18.03.2025 JMFC-4/SOUTH-EAST/SAKET COURTS/DELHI 18.03.2025 FIR No.402/2014 State Vs. Rajesh Kumar